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Sunday, February 18, 2007

Freedom of Speech

"What's the best way to squelch neonazi hate groups without squelching freedom of speech? It's a conundrum." Reasonably Prudent Poet

It is questions like these that are amongst the most important and most difficult ones faced by those of us who defend free speech absolutism. Free speech absolutism means that beyond certain specific, narrowly defined exceptions (false advertising, fraud, conspiracy, slander, libel, shouting "fire" in a crowded theatre, etc.), speech should remain completely unregulated. No law should be passed to forbid any type of political, religiious, artistic, or personal expression. When a state agency grants support to one stance on an issue (such as the library in the previous post), it cannot then deny support to an opposing viewpoint. (Disclaimers stating that the variety of viewpoints provided do not necessarily reflect those of the institution should be properly displayed with all exhibits, not just the religious ones.) This stands even if some type of expression is patently offensive to our sensibilities in either form or content.

So, yes, we must defend even the Neonazis' right to speak, but does this mean we are helpless against them? No. We may not be able to stop them from speaking but we can stop them from acting to some extent. Most police jurisdictions and the Federal Bureau of Investigation have teams that monitor Neonazi and other paramilitary groups. When these groups begin to plan specific illegal actions, members can then be arrested for conspiracy to commit X crime, whatever that crime may be. Other actions related with hate groups are illegal regardless of speech content, such as defacing a building with graffiti or harassing someone. If they are successful in carrying out illegal activities, the full force of the law stands ready.

Surely, it would be easier if we could forbid them to congregate, form associations, march, publish, etc.? Actually, I don't think so. First, we'd have to assume they'd actually obey the law. Not likely. Second, we have to assume that people will think, "Oh. I'm not allowed to say that. It's bad. So, I won't think it or act on it." Again, not likely. Third, in addition to violating the principles of freedom of speech, such laws could actually make things worse.

There are two practical truths that support free speech absolutism: Those who are silenced take action. That which is forbidden is often more appealing than it would have been otherwise.

Silencing the Neonazis (while preserving our right to condemn what they hold sacred) will only add to their sense of "oppression" and thus their sense of the "righteousness" of their cause. Will they not act upon their sense of righteous victimhood? Think of the Danish cartoon controversy. In the Western press, this controversy was framed along the lines of the forces of Islamic radicalism v. the Western ideal of freedom of speech. In Denmark, however, as in much of Europe, free speech is not absolute. A variety of laws criminalize certain types of expression: hate speech, the display of Nazi symbols, and Holocaust denial, for instance. This double standard makes a mockery of claims of free speech idealism and contributes to the Muslim extremist's sense of victimhood and righteousness. The people of Europe could not credibly argue that they permit the publication of cartoons offensive to Muslims solely on free speech grounds when speech offensive to Jewish and European sensibilities is forbidden by law. It becomes obvious that this contributed to the severity of the response when we consider that Holocaust denial laws were cited by those inciting the riots. (On a related note, these laws have also been cited by those who incite anti-Semitic hatred throughout the world, including attendees at the Holocaust denial conference held by Iranian president Mahmoud Ahmadinejad, a conference ironically attended by Jews. We can say here that Holocaust denial laws made allies of people who would have been natural enemies otherwise and have weakened our position rather than strengthened it.)

The age old cry of charlatans and extremists: They silence me because they know I speak a truth which sheds light on their lies! The taboo is very appealing is it not? From sex to drugs to rock and roll to the newest "miracle" cures the medical establishment doesn't want you to know about, the forbidden draws our attention and provides enormous temptation. How often do we justify breaking taboos by condeming those who would deprive us of their pleasures or their truth? The Man just doesn't want us to have a good time. The Man just doesn't want us to rip back the curtain to reveal that he's not really the Wizard of Oz. The Man doesn't want us to know that Oreos cure cancer because he gets rich off chemotherapy. The Man doesn't want you to know that the Holocaust never happened because he's secretly controlled by the worldwide Zionist conspiracy! Ridiculous? Probably. Dangerous? Absolutely.

Our only hope, other than bugging Neonazi offices, is to add our own voices to the marketplace of ideas, to make what we offer more appealing than the drivel oozing from the slimy charlatans and extremists of the world. At times, this seems like trying to make broccoli more appealing than chocolate, but it is not as hopeless as all that. So many bad ideas have met their end in the marketplace. Surely, a few more can join them in the dustbin of history.

6 Comments:

i notice that you didn't mention "incitement" in your list of acceptable regulations on speech. speech that is intended by the speaker to cause imminent illegal conduct by the listener, and is *likely* to cause such illegal conduct, is currently unprotected by the first amendment. this category is very narrow and all the qualifiers (ie: imminent, likely, intended) must be firmly established. for me, what is trickiest, is determining at what point this line has been crossed and, especially, in what ways new technologies call for a slight shifting of these bounds. should we apply the same standards to websites that call for illegal conduct (like the one that called for violence to abortion doctors and offered names and addresses of those doctors) that we apply to people speaking to angry mobs? as distasteful as i find the messages of hate groups, i have to acknowledge their right to believe and speak whatever they want. however, i find myself feeling much less liberal when they start encouraging their members to behave violently and -- just for me, personally -- i am concerned by my knee-jerk response toward protectionism. i'm worried that it exposes a flaw in my intellectual integrity. :-) what do you think about incitement?

Even for a free speech absolutist, incitement is a sticky wicket. I think those who actually post the names of doctors with their addresses and instruct their followers to kill them could be charged with conspiracy to commit murder if anyone acted on it, not just incitement. Incitement should be left (as much as possible) to the angry mob situation. Even with the doctor situation, there is time for police to intervene to protect the doctors or for the doctors themselves to hire bodyguards, etc. As long as there's time for an investigation and preventitive measures, incitement doesn't apply.It's a difficult line to draw and one that has posed a substantial challenge to far greater legal minds than yours truly. Imagine the limits a looser "incitement" standard would place on satire, for instance. Swift's "A Modest Proposal" comes to mind. Or simply an expression of rage not mean to be taken seriously. Much of the blogosphere is filled with threatening language that could (under a less rigid standard) be called incitement.

in order for there to be a conspiracy, there must be 1.) actual agreement and 2.) intent to agree to commit an illegal act among two or more people. in many jurisdictions, there must also be an overt act in furtherance of the agreed upon act. posting an encouragement with instructions explaining who to kill and where to go to kill them wouldn't rise to conspiracy because it doesn't contain the primary element of conspiracy: agreement. however, it best resembles incitement, which is speech spoken to an audience with the intent of causing imminent illegal activity. i'm not familiar with any aspect of the legal treatment of incitement that says an act isn't incitement if a threatened person has a chance to hire a bodyguard, and even if the abortion doctors *did* hire bodyguards, a thwarted attempt at murder is still attempted murder, which is obviously a crime. i do understand, however, that time is the element you're stressing, that websites calling for violence operate more slowly than the typical "angry mob" situation and might remove the imminence from the equation, which is a necessary element to incitement. however, i think your protest is overbroad when you draw in satire because the other elements of incitement would not apply: 1.) intent on the part of the speaker to cause illegal conduct and 2.) that the speech is likely to cause illegal conduct. either way, i agree 100% that it's a sticky wicket. i just think it wouldn't hurt to consider the way the internet is being used to mobilize people into action these days and acknowledge that, in some circumstances, posting some content on websites could be tantamount to shouting incitements to an angry mob.

Forgive me, "conspiracy" was wrong. I think it would actually be "accessory". Yes, a thwarted attempt at murder would still be a crime, but as you point out, the speech that led to the action would not be incitement. Perhaps accessory in some jurisdictions, but not incitement in the "free speech" sense. As for the satire, the history of first amendment law is rife with cases of satire or anti-government screeds having been brought under the "incitement" umbrella, a fact that was overturned by the Supreme Court when it set rigid, narrow standards for incitement including the time element that I used in the abortion doctor case.Now, obviously, if a website creates an immediate threat like "go to X spot and kill so and so in an hour" that may be a different case. I agree with you, however, that much of what is being spread through the internet is frightening and we may indeed have to reconsider the rules of free speech as applies to it, but I think we should shy away from any kind of "preemptive" controls on speech if at all possible.

i agree that preemptive attacks on speech (known in legalese as "prior restraints") are scary -- fortunately they receive the strictest scrutiny under the law. and i understand that satire may have been attacked in the past, but similar attacks wouldn't stand now b/c the way the law is currently defined. anyway, i think we're saying something very similar here and we're both facing a frustrating dilemma. i think that, for me, it boils down to the difference between speech as an element of belief versus speech that is an action. this isn't a legal distinction, just a personal one in my own mind. i imagine there is a place where belief-speech crosses into action-speech and i feel less concerned with protecting action-speech when the action it tries to take is in the form of violence, especially towards living things (as opposed to property).

anyway, thanks for giving me a good excuse to think about this a lot. this has been a fun debate and i'm sure we'll both keep grappling with it.

Thanks, rpp. It is a great difficulty. But what I mean by the "satire" thing is not that it would be permitted under existing laws but may slip in if we try to change the laws to bring Neonazis and the like to heel. The balance between freedom and security is an extraordiarily difficult one. I wish there were some way to achieve both to some perfect agree, but alas! humanity confounds any attempt to do so.